Scope of Ruling and Impact on Construction Permitting Unclear
On August 30, a federal district court in Arizona effectively threw out the Trump Administration EPA’s Navigable Waters Protection Rule, which defined waters of the United States (WOTUS) under the federal Clean Water Act and addressed the reach of federal government jurisdiction over waters and wetlands. At the time of this writing, the scope of this ruling is still unclear—whether it applies to just the plaintiffs, the states where the plaintiffs reside, or nationwide. However, the agencies have indicated that for the time being they will default to the pre-2015 regulatory regime for making jurisdictional determinations (JD).
If a project is waiting on a jurisdictional determination (JD), the contractor may want to reach out to the appropriate U.S. Army Corps of Engineers District for a status update. Please contact melinda.tomaino@agc.org if any Corps Districts pause work on JDs.
Regardless of this ruling, AGC members should expect changes to come related to WOTUS. The Biden Administration has already indicated that it will revisit the AGC-supported 2020 Navigable Waters Protection Rule, which had provided much needed clarity (June 9). In several public remarks, they have stated an intent to repeal the rule and reinstate the pre-2015 requirements while they work on a new rule.
In response to this effort, AGC spoke with the head of the U.S. Environmental Protection Agency’s (EPA) Office of Water in late May and delivered remarks during a public hearing on August 31 that reiterated the need for a clear rule that strikes a balance between federal and state jurisdiction; draws clear boundaries between land and water; and retains essential exclusions for ditches, stormwater features, and water filled depressions.
AGC also submit written comments in response to the agencies’ request for preliminary feedback, calling for a clear regulation that draws bright lines between federal and state waters.
Updated September 23, 2021.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.